Calcutta High Court
Smt. Elokeshi Chakraborty vs Sri Sunil Kumar Chakraborty on 14 November, 1990
Equivalent citations: AIR1991CAL176, AIR 1991 CALCUTTA 176
ORDER S.S. Ganguly, J.
1. This first appeal has been preferred by the wife-opposite party from the judgment and decree passed by the learned Additional District Judge, 3rd Court, Midnapore in Matrimonial Suit No. 9 of 1986 awarding thereby a decree of judicial separation in favour of the husband-petitioner.
2. The petitioner the respondent henceforward was a primary school teacher at Midnapore town with his ancestral home at Panchkhuri under Midnapore P.S. and very near Midnapore town and the opposite party/ wife the appellant henceforward was a nurse posted at the primary health centre at Sabang within the district of Midnapore, when they were married on 22-5-83 according to Hindu Rites.
3. The respondent's case as per his petition u/ S. 13 of the Hindu Marriage Act is that after the marriage he brought the appellant to his ancestral home at Panchkhuri. She stayed with the respondent there till the date of Astamangla and thereafter she went away to her quarters attached to the primary health centre at Sabang. Thereafter the appellant spent only one or two nights with him at his home at Panchkhuri within a period of two months from the date of Astamangla and thereafter she never came back there and lived with him there on any other occasion. The respondent repeatedly went to Sabang on many occasions and requested her to come back to the matrimonial home for living with him there. The appellant not only did not come back to the matrimonial home but she also expressed her irritation and annoyance and ultimately she told him that she was compelled to marry him by her relations and that she wanted to lead a life free from the confines of the matrimonial home. She even told him not to visit her at Sabang. On 10-12-83 the respondent went to see her at Sabang when she treated him with great rudeness. At the night of that day the respondent felt sic with violent pain in his stomach and vomiting. He was sent back home on the day following and his family physician diagnosed his trouble as food-poisoning." The respondent suspected that the appellant had added poison to his food and thereafter he never dared to go to Sabang to visit her. He, however, wrote to her repeatedly requesting her to come back to Panchkhuri, but without any response from her. Thereafter when the appellant was transferred to the Sadar Hospital at Midnapore and started living in her quarters attached to that Hospital, the respondent and his well wishers met her there repeatedly and requested her to come back to Panchkhuri. On 18-9-85 the appellant turned down their requests and abused the respondent in filthy language. The respondent never met the appellant after that. In the circum-
stances stated the respondent filed his petition and prayed for divorce/judicial separation on the ground of desertion with effect from 10-12-83 and also on the ground of cruelty.
4. The appellant's case as per her written statement appears to be the following:--
After her marriage the appellant went to her husband's place at Panchkhuri and started living there with the respondent as husband and wife. After sometime she noticed a change in the behaviour of the respondent who started torturing her physically as well as mentally without any reason. Subsequently she discovered a number of letters from the respondent's room and from those letters as well as on enquiry she learnt that since before the marriage the respondent had been carrying on an affair with a girl of the name of Nilima Maiti. Being asked by her, the respondent admitted all this and he also told her that he would marry the said Nilima. At her instance her husband's people contacted Nilima's father and he assured them that he would take appropriate steps but actually did nothing. Since the appellant was attached as a nurse to the primary health centre at Sabang, occasionally she used to go to the matrimonial home at Panchkhuri. On those occasions the respondent used to avoid her and go away elsewhere and he also used to torture her in many ways. The respondent also went on maintaining his relations with the aforementioned Nilima as before and on her protest the respondent used to torture her in many ways. He also put pressure on her for a written permission to marry the said Nilima. In February 1985 the appellant was transferred to Midnapore Sadar Hospital and she started living at her matrimonial home and she used to attend the hospital therefrom. On this the respondent became very angry with her and he started torturing her in many ways and the other members of his family also never raised any objection to that. In the circumstances stated it was not possible for the appellant to attend to her duties from the matrimonial home and she also felt very much insecure there and in April, 1985 she was compelled to take shelter in a hostel attached to the Midnapore Sadar Hospital. While living there the appellant used to go to her matrimonial home in case of necessity and during the holidays. The respondent, however, went on maintaining his relation with the aforementioned Nilima and he also repeatedly told her that he would marry her. On her protest the respondent used to torture her and used to induce her to commit suicide. In the circumstances stated feeling very much insecure the appellant lodged information with the Midnapore Kotwali P. S. Since thereafter the other members of the respondent's family started humiliating the appellant and under such adverse circumstances the appellant was compelled to leave her matrimonial home.
5. The parties examined themselves and their witnesses before the learned trial Judge. The appellant also exhibited a number of letters and such other papers in support of her case. On a consideration of all the materials on record the learned trial Judge held that while it was established that the appellant had deserted the respondent the appellant could not establish that she was justified in doing that. On the ground of desertion, therefore, the learned Judge decreed the suit and gave the respondent a decree for judicial separation. The learned Judge felt that the ground of cruelty was not established. Hence, this appeal.
6. It is urged from the side of the appellant that the learned Judge without finding that the respondent had succeeded in establishing his case, wrongly held that the desertion was proved and wrongly placed the burden on the appellant to establish that the desertion was justified. It is urged that since the respondent failed to establish his case as per his petition by satisfactory evidence the learned trial Judge ought to have dismissed his petition under S. 13 of the Hindu Marriage Act.
7. It is urged from the side of the respondent that not only the learned trial Judge was justified in decreeing the suit on the ground of desertion but that he also could have and should have decreed the suit on the ground of cruelty also.
8. In the circumstances stated above the following points may, therefore, be framed for disposing of this appeal:--
1. Was the desertion of the respondent by the appellant proved in this case?
2. If so, was the appellant justified in deserting the respondent?
3. Did the appellant treat the respondent with cruelty as alleged?
4. To what relief, if any, is the appellant entitled?
Decision on points Nos. 1 to 4.
9. All the points are taken up together. As stated above the respondent sought the relief mentioned above on the ground of desertion and cruelty. On a consideration of the materials on record the learned trial Judge has concluded that the appellant had permanently abandoned the respondent and his family without any reasonable cause. How far the learned Judge's conclusion in this regard may be considered as justified?
10. Desertion in such a case as the present is the intentional permanent foresaking and abandoning of one's spouse by the other without that other's consent and wihout reasonable cause; L. U. Kirpalani v. Smt. Meena, . The law is well settled that for the offence of desertion so far as the deserting spouse is concerned two essential conditions must be there namely, (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end and similarly two elements are also essential so far as the deserted spouse is concerned, namely, (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid; Bipin Chandra v. Prabhabati, . The burden of proving desertion for 2 years and further that such desertion was without any just cause is on the petitioner, L. U. Kirpalani (supra). If a spouse is forced by the conduct of the other spouse to live separately or to stay away, in such a case there is no legal desertion to constitute a ground for divorce; A. Nara-yanan v. K. Sri Devi, ; Toppo v. Toppo, 1988 (1) CLJ 294. The law is equally well settled that the test of proof in a matrimonial suit is preponderance of probabilities as is available in every kind of civil litigation; Dastane v. Dastane, . In the background of the above propositions we now proceed to see how far the decision of the learned trial Judge in this case may be considered as justifiable.
11. As stated above it is the case of both the parties that the marriage between them took place on 22-5-83. It is not disputed that thereafter the appellant went to her matrimonial home at Panchkhuri to live there with the respondent as husband and wife. It is the definite case of the respondent that on the eighth day thereafter she went away to her father's place in connection with Astamangla ceremonies and it is the respondent's further case that since thereafter within a period of two months the appellant spent one or two nights with him at the matrimonial home and that since thereafter she has never been there on any other occasion whatsoever. This is the respondent's specific case as per his petition under S. 13(i)(b) of the Hindu Marriage Act which under the provisions of S. 20(2) of the said Act may be considered as his evidence in support of his case. Besides this, the respondent also examined himself and a few witnesses on this point. The respondent's specific evidence on this point is as stated above. It is also his specific case in his evidence that since 10-12-83 in the night of which he fell sick he had no conjugal relationship with the appellant. The respondent's maternal uncle Shyama Prasad Chakraborty P.W. 2, says unequivocally that the parties have not been staying together since about three months after their marriage. The respondent made several attempts to bring the appellant back to his house. Once he, the maternal uncle of the respondent and a teacher of the respondent's school went to the Hospital at Midna-pore to meet the appellant when she told them that she was not willing to live with him. Ajay Kumar Ghorai, P.W. 3, the next door neighbour of the respondent said that the appellant had been to her in-law's house for the last time about two months after their marriage. Ajit Chakraborty, P.W. 4, the headmaster of the primary school of which the respondent is also a teacher said that on one occasion in September, 1985 he had accompanied the respondent to the nurses' hostel at Midna-pore. They tried to persuade her to come and stay with the respondent. The appellant, however, was adamant and she ultimately refused to go to the respondent's house. The maternal and paternal uncles of the respondent were also with them at that time. Anku Ari, P.W. 6, another close neighbour of the respondent said that the appellant had last visited and stayed in the house of the respondent in the month of Sraban of the year of their marriage. From the evidence of Ajay Kumar Ghorai it appears that the Bengali date of the marriage of the parties was 13th Jaistha, 1390 B.S. From the evidence of these witnesses it becomes quite clear that for a period exceeding 2 years next preceding the date of the institution of the suit, the appellant had stayed away from the matrimonial home. No reason was shown from the side of the appellant as to why these witnesses should be disbelieved. The appellant has also exhibited a number of letters which she received from one of the brothers of the respondent and a cousin of his. These letters (Exts. C1, C2, C3, C4 and D) very clearly show that the appellant was not living in her matrimonial home. These letters are dated from February, 1984 to November, 1984. The appellant deposed to the contrary but she could not produce any corroborative evidence.
12. In the circumstances stated we are of the view that the learned trial Judge made no mistake by holding that the appellant had deserted the respondent and that the period of desertion was more than two years next preceding the date of the filing of the suit.
13. The question that arises next is as to whether the appellant had any reasonable justification or excuse for deserting the respondent or staying away from him.
14. As stated above the appellant's case in this regard is that on her objection to the affair the respondent had been carrying on with Nilima Maity, the respondent misbehaved with her and the situation came to such a pass that she ultimately had to leave the matrimonial home. To prove her allegations in this regard the appellant has exhibited a number of letters. The learned trial Judge observed that a few of these letters showed that the relation between the respondent and the aforementioned girl Nilima was very cordial which could be termed as love. We have also gone through the letters. In our view only one of them namely, Ext. A shows that the Nilima had a soft corner for the respondent. The other letters dc not show anything besides that she had high regards for the respondent. Even granting, however, that Nilima had great affection for the respondent, from that it does not follow that the respondent also reciprocated her feelings. There is, in fact, nothing to show that, except one or two stray statements made by the respondent's brother in his letters to the appellant. On the basis of such meagre material it cannot be held that there was a regular love affair going on between the respondent and Nilima. According to the appellant the affair between the two had been going on since before the marriage. Had the relationship between them been really so cordial the respondent would have married Nilima instead, and in any way he would not have married the appellant at all. There is also not an iota of evidence to show that the respondent misbehaved with the appellant. Considering all the circumstances we agree with the learned trial Judge that even granting that there was some kind of a relation between the respondent and Nilima the appellant ought not to have left the matrimonial home and that on the other hand she ought to have stayed there and made a definite effort to take the respondent's mind away from the girl. Agreeing with the learned trial Judge we are inclined to hold that there was no sufficient justification or excuse on the part of the appellant to stay away from the matrimonial home.
15. It has been established that the appellant had been staying away from the respondent for a period exceeding two years next preceding the date of filing of the suit for divorce. We have also seen just now that the appellant had no reasonable excuse for staying away from the respondent. In the circumstances stated we are inclined to agree with the learned trial Judge that the factum of separation in the case was accompanied by an intention on the part of the appellant to bring cohabitation permanently to an end. We hold also that there was no question of the respondent's consenting to her staying away from him and further that he also cannot be held guilty of any conduct giving reasonable cause to the appellant leaving the matrimonial home. Agreeing with the learned trial Judge we hold that desertion for a period exceeding two years has been established in this case. The suit, therefore, has been rightly decreed by the learned trial Judge.
16. It has been urged from the side of the respondent that the learned Judge ought to have decreed the suit also on the ground of cruelty. It is urged that by staying away from the respondent without any valid reason and thereby depriving him of her company the appellant treated him with cruelty and heart-lessness and that he was entitled to get a decree on this ground also. It was urged that by lodging complain with the local Police Station, the Gram Panchayat and such other Authorities casting aspersion on the respondent the appellant treated the respondent with curelty. In view of the fact that no decree was passed by the learned trial Judge on this ground and further that our finding with regard to the point of desertion is sufficient for the purpose of disposing of this appeal we are not inclined to enter into the question of cruelty.
17. The points are decided accordingly. In view of what has been stated above it is hereby ordered that the appeal is hereby dismissed on contest. The judgment and decree passed by the learned trial Judge are hereby confirmed. The parties do bear their costs.
Manabendera Nath Roy, J.
18. I agree.
19. Appeal dismissed.